These words are of frequent occurrence in the Roman writers and jurists, and have a great
variety of siguifications, according to the matter to which they refer. Their general meaning
is that of security given by one person to another, or security which one person obtains by
the advice or assistance of another. The general term (cautio
distributed into its species according to the particular kind of the security, which may be by
, by a fideiussio
, and in various other
ways. The general sense of the word cautio
is accordingly modified by its
adjuncts, as cautio fideiussoria, pigneraticia
, or hypothecaria
, and so on. Cautio
is used to express both the security
which a magistratus
or a iudex
may require one party
to give to another, which applies to cases where there is a matter in dispute of which a court
has already cognizance; and also the security which is a matter of contract between parties
not in litigation. The words cautio
more particularly used in the latter sense.
If a thing is made a security from one person to another, the cautio
becomes a matter of pignus
or of hypotheca;
is the engagement of a surety on behalf of a principal, it is a
was most frequently a writing, which expressed the object of
the parties to it; accordingly, the word cautio
came to signify both the
) and the
object which it was the purpose of the instrument to secure. The phrase cavere
expressed the fact of one person giving security to another as to some
particular thing or act.
which were a branch of stipulationes
contracts as would be ground of actions.
In many cases a heres
could not safely pay legacies, unless the legatee
gave security (cautio
) to refund in case the will under which he claimed
should turn out to be bad. The cautio Muciana
was the engagement by which the
bound himself to fulfil the conditions of his testator's will, or
to give up the inheritance. The heres
was also, in some cases, bound to
give security for the payment of legacies, or the legatee was entitled to the bonorum
were required to give security
) for the due administration of the property intrusted to
them, unless the tutor
was appointed by testament, or unless the curator
was a curator legitimus.
who sued in the name of an absent party might be required to give security
that the absent party would consent to be concluded by the act of his procurator;
this security was a species of satisdatio
under the genus cautio.
In the case of damnum
, the owner of the land or property threatened with the mischief might call for
security on the person threatening the mischief.
If a vendor sold a thing, it was usual for him to declare that he had a good title to it,
and that if any person recovered it from the purchaser by a better title, he would make it
good to the purchaser; and in some cases the cautio
was for double the
value of the thing. This was, in fact, a warranty.
The word cautio
was also applied to the release which a debtor obtained
from his creditor on satisfying his demand; in this sense cautio
equivalent to a modern receipt; it is the debtor's security against the same demand being made
a second time. Thus cavere ab aliquo
signifies to obtain this kind of
security. A person to whom the usus fructus
of a thing was given might be
required to give security that he would enjoy and use it properly, and not waste it.
is also applied to express the professional advice and assistance of a
lawyer to his client for his conduct in any legal matter.
The word cavere
and its derivatives are also used to express the
provisions of a law by which anything is forbidden or ordered, as in the phrase Cautum
, etc. It is also used to express the words in a will by which a testator
declares his wish that certain things should be done after his death. The preparation of the
instruments of cautio
was, of course, the business of a lawyer.
It is unnecessary to particularize further the species of cautio
they belong to their several heads in the law.